In a major development for the management and treatment of suspected Cauda Equina Syndrome (“CES”), Getting it Right First Time (“GIRFT”) has published a new national pathway; Spinal Surgery: National Suspected Cauda Equina Syndrome (CES) Pathway. In this article, Deputy Head of Clinical Negligence Justin Valentine, who has a speciality in CES cases and is listed as a contributor to the pathway, reviews and analyses the recommendations from a legal perspective.
Cauda equina syndrome (“CES”) is a serious neurological condition which can result in life-changing injuries. The cauda equina is a bundle of nerves at the end of the spinal cord. These nerves provide motor and sensory function to the legs, the bladder and the bowel. CES can be caused by trauma, infection or tumour. However, the chief cause is degenerative disc herniation causing compression of the cauda equina and this is the focus of the pathway. CES requires prompt surgical decompression because if the compression is not relieved swiftly permanent disability may result, in particularly paralysis and permanent loss of bowel, bladder and sexual function. According to “Spinal Surgery: National Suspected Cauda Equina Syndrome (CES) Pathway” (“the Pathway”) published in February 2023, 23% of litigated claims for spinal surgery in England relate to CES.
There is a variation in response by practitioners and by trusts to suspected CES both in relation to what signs and symptoms should trigger investigation and as to the urgency of that investigation. This makes the field prone to differing opinions by expert neurosurgeons, spinal surgeons and general practitioners (where many patients initially present) and, accordingly, susceptible to litigation where there is an adverse outcome.
The pathway provides a national framework for the diagnosis and treatment of suspected CES with the aim to diminish unwarranted variation in treatment, improve outcomes and reduce litigation.
One area particularly prone to dispute is the urgency with which patients with bilateral sciatica should be referred. According to “GP Notebook”, used in many GP practices, evidence of bilateral nerve root involvement (typically sciatica) requires immediate (or emergency) referral. However, this is disputed by many practitioners and the NICE guidance only added bilateral symptoms as indicative of impending nerve damage (CES) in 2018.
The Management page of the NICE guidance suggests emergency referral, ie immediate, to a spinal surgery service if there is suspicion of CES or urgent referral (within 2 weeks) if “Red flags are present in the absence of neurological dysfunction”. Neurological dysfunction is described as “Severe or progressive neurological deficit of the legs, such as major motor weakness with knee extension, ankle eversion, or foot dorsiflexion”.
The pathway recommends that sudden onset bilateral radicular pain (sciatica) without CES symptoms should lead to “urgent” referral ie within two weeks rather than “emergency” referral albeit that safety netting for red flags should be provided and if there is a deterioration or new CES symptoms, then an emergency referral should be made.
According to the pathway emergency referral is warranted where there is leg pain and/or back pain with recent onset (within 2 weeks) of other neurological symptoms which it identifies as:
- difficulty initiating micturition or impaired sensation of urinary flow;
- altered perianal, perineal or genital sensation S2-S5 dermatomes – the area may be small or as big as a horse’s saddle (subjectively reported or objectively tested);
- severe or progressive neurological deficit of both legs, such as major motor weakness with knee extension, ankle eversion or foot dorsiflexion;
- loss of sensation of rectal fullness;
- sexual dysfunction – inability to achieve erection or to ejaculate, or loss of vaginal sensation.
A further area of contention in many litigated cases is, where there is sudden onset of CES symptoms, how quickly an MRI should be undertaken subsequent to emergency referral. The pathway recommends that a bladder scan be performed and that an MRI be undertaken “as soon as possible, and certainly within four hours of request to radiology”.
There are many cases where despite a request for an MRI it is not undertaken for considerably longer (12 or more hours). If there is neurological deterioration during this period, it is often irreversible establishing causation in any subsequent litigation. The pathway proposes an approach whereby local provision for a 24 hour MRI facility should be in place by June 2024 and “Where this is not possible currently, a standard operating procedure in conjunction with local spinal and radiology services should be in place describing the local pathway for urgent out of hours scanning”.
In relation to imaging, the pathway is published on the same day as the Clinical Imaging Board’s guidance “MRI Provision for Cauda Equina Syndrome” which is to like effect.
If imaging establishes cauda equina compression, then surgery should be undertaken on an emergency basis. Again, in many civil claims a patient is diagnosed with cauda equina compression but not operated upon until the following day during which time irreversible neurological deterioration may have occurred. The Pathway notes that surgery for patients with incomplete CES should be treated as a NCEPOD (National Confidential Enquiry into Patient Outcome and Death) E1/E2 emergency[1] “as it is time-sensitive and life-changing, but not life-threating” and that “Any reason for delay should be documented”. Practitioners should ensure that any documented reasons for delay are disclosed.
The pathway also makes specific provision for catheterisation of the patient prior to surgery and a trial without catheterisation post-operatively with pre/post void bladder scans. Again, there are civil claims where assessment of bladder function is inadequately performed and there is urine retention which can lead to permanent bladder damage in and of itself (bladder volume greater than 1,000ml for several hours will lead to permanent bladder distension injury).
The pathway provides an advance in the treatment for patients with suspected CES and clarification for those involved in litigation of CES cases where there has been a failure of management.
The courts must still apply the Bolam test as amended by Bolitho v City and Hackney Health Authority [1998] AC 232. As noted in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB) when discussing the Bolitho test:
A Judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency. For example, a judge will consider whether the expert opinion accords with the inferences properly to be drawn from the Clinical Notes or the CTG. A judge will ask whether the expert has addressed all the relevant considerations which applied at the time of the alleged negligent act or omission. If there are manufacturer’s or clinical guidelines, a Court will consider whether the expert has addressed these and placed the defendant’s conduct in their context.
In light of this legal principle, it is suggested that deviations from the pathway, unless justified on a sound basis, will prima facia constitute breach of duty.
Justin Valentine specialises in these types of cases. Find out more here.
On 2nd March 2023 at 1pm there is an NHS England webinar accessible here at which Mike Hutton, the GIRFT clinical lead for spinal surgery and lead author of the Pathway, will be joined by a number of speakers to discuss best practice in light of the pathway’s recommendations. Justin Valentine will be providing a brief legal view of the pathway during the webinar.